Archive for January, 2009

January 30th Decisions

January 30, 2009

January 30th. The Kansas Supreme Court today issued 14 published opinions and two unpublished ones. A selected summary of some of these cases can be found on the Court’s own website, here. We will have coverage of all the published decisions over the next few days. The unpublished cases were:

Docket Number / Case Name / Judge / Disposition / County
98,708 — State v. May — Per Curiam — Affirmed — Sedgwick.
99,816 — State v. Chavez — Per Curiam — Affirmed — Sedgwick.

Unpublished opinions are supposed to be those where the case turns on the straightforward application of existing law. Though widespread, the practice is not without controversy – it has been criticized elsewhere for allowing courts to hide ‘stinkers’ as well as being unnecessary in the age of the internet where the size of printed materials is no longer a constraint. These cases are not available online. If anyone is aware of any controversy surrounding them, please contact this blog and we will investigate.


Oral Argument in Kansas v. Ventris

January 22, 2009

January 21st. The United States Supreme Court today heard oral arguments in Kansas v. Ventris, an appeal by the State of Kansas against the ruling of the Kansas Supreme Court that evidence gathered by a police informant in violation of a defendant’s Sixth Amendment right to counsel could not be admitted to contradict the defendant’s testimony at trial (impeachment purposes). Background on this case can be read here and here. Argument time was divided between Stephen McAllister (Solicitor General of Kansas), Nicole Saharsky (of the United States Solicitor General’s Office, in support of Kansas) and Matthew Edge (Kansas Appellate Defenders Office).

The argument was surprisingly muted – normally counsel appearing before the Court have a great deal of trouble getting through their arguments without questions from the Justices. On this occasion however pages of the transcript go by between questions! Perhaps the most memorable thing about it will be that Justice Ginsburg used the word ‘snitch’ instead of the more neutral ‘informant’ no fewer than six times.

Justice Scalia’s questioning revolved around where the Sixth Amendment violation occurred – with the informant in the cell or with the testimony at trial, something that none of the three lawyers arguing the case was able to answer in a convincing manner. This will be important since Ventris’ argument depends upon casting the Sixth Amendment as a right which guarantees certain procedural aspects of the entire prosecution process, while Kansas and the United States argue that the rule against questioning someone without a lawyer present from Massiah is more akin to  Miranda rights, evidence gathered in violation of which can be brought up for impeachment purposes. However, Scalia left few hints about which way he was thinking.

This distinction will also be important to Justice Breyer, who stated that he viewed the purpose of the Right to Counsel to be to ensure that if you ask for a lawyer you get one. He thought that the conduct of the police here was more akin to an ethical violation (talking to someone without a lawyer present after they had asked for one/were eligible for one) but did not seem willing to constitutionalize that ethical rule.

In addition, Justices Thomas, Souter and Kennedy asked no questions at all, making the case a hard one to predict. However, since Justice Alito and the Chief Justice were clearly on the side of Kansas while only Justice Ginsburg was on Ventris’ side, coupled with the fact that expansions of the exclusionary rule are pretty uncommon these days, I’d expect a reversal. Several of the Justices were a little uneasy about the idea of appearing to license the police to violate the constitution so if they do reverse, we might expect some narrowing language that talks about the specifics of this case.

Decision: State v. Prine

January 17, 2009

January 16th. The Kansas Supreme Court has issued its decision in State v. Prine (No. 93,345), a revolting case involving child abuse. The Court ruled 6-1, in an opinion by Justice Beier, that evidence of prior criminal conduct may only be admitted to prove that the defendant had a tendency to commit such acts as he was charged with where the prior criminal activity and the present charges are “so strikingly similar in pattern or so distinct in method of operation to the current allegations as to be a signature.” As a result the court overturned John Prine’s conviction and 33 year sentence for the rape and aggravated criminal sodomy of a six year old girl, and remanded the case for a retrial. Chief Justice McFarland dissented, criticizing the rule employed by the court as created by erroneous interpretation of precedent. Justices Davis and Johnson did not take part in the case, their roles were filled by Court of Appeals judges McAnany and Larson.

Considering the subject of this case reader discretion is advised. While the summary produced below has been sanitized somewhat it still contains some graphic language.

In 2003, six year old A.M.C. reported to her grandmother that Prine, the best friend of her father, had abused her while he was babysitting. Prine had “touched her between her legs with his fingers, his tongue, and his tummy” on multiple occasions. A social worker who interviewed A.M.C. had also worked with Prine’s 9 year old daughter S.M. who reported that Prine had molested her in a similar manner when she was 4 or 5. Prine was charged with three counts relating to A.M.C. and one relating to S.M. which was dismissed since the State could show no evidence that it fell within the statute of limitations.

At trial, the State was permitted to admit evidence from S.M. and J.J.S. (Prine’s half-sister) who reported that when she was 4 or 5 and Prine was 17, he had molested her. The State’s argument for inclusion of the evidence was that the acts in all three cases had similar patterns, since each involved a girl about 5- or 6-years-old and simulation of a sex act without penetration by the penis; two of the cases involved oral sodomy and digital penetration.

In Prine’s appeal, he argued that the evidence of past criminal acts should not have been admitted. The State argued that it was valid since it helped to prove intent, absence of mistake and plan (i.e. that Prine’s previous actions can prove that he had a modus operandi for the one charged). A divided Court of Appeals ruled against Prine. The Supreme Court found for him. Its holdings on intent and absence of mistake are straightforward: intent was not an issue in the case, and was irrelevant for the type of crime in question. At trial Prine denied doing it, therefore the State had no intent burden to meet. Similarly, while Prine had suggested an alternative explanation for A.M.C.’s complaint to a KBI officer he did not rely on this at trial and therefore the State had no need to show that this alternative explanation was unwarranted (absence of mistake).

It is on the matter of ‘plan’ or modus operandi that the Court breaks new ground. The Court of Appeals divided on this issue, noting a tension within the Kansas case law over the admission of this type of evidence in abuse cases. One line of cases uses language such as ‘strikingly similar’ and ‘signature act’ to describe the test required to allow this evidence to be admitted to prove that the defendants actions fit a particular way of committing the crime. The other line of cases simply required there to be a general method “similar enough to show a common approach that is tantamount to a plan”. The Court notes that this tension in the law is unhelpful and therefore crafts a standard to be followed in all cases. The standard it adopts is that the charges must be “so strikingly similar in pattern or so distinct in method of operation to the current allegations as to be a signature”. This decision is critical to this case, since while Prine’s prior behavior meets the looser standard it was sufficiently different in the three cases to fail to meet the newer stricter standard. Note to readers – the court’s decision as applied to this case hinges on a detailed analysis of the abuse in the three cases. Since that can be read at the main opinion linked above, it will not be repeated here, since such specifics are not necessary to describe what the test the Court arrived at was.

As a result of this ruling, the Court finds that the admission of this evidence was a reversible error and therefore vacates the conviction and sentence. Prine had also appealed his conviction for rape on the grounds that the acts he was convicted of were non-penetrative and that A.M.C.’s testimony at trial supported this (her original police interview did not). The Court rejects his argument, finding that the acts described could by a rational factfinder have been found to be penetrative under the definition in the statute in question. The Court therefore held that Prine can be tried again for rape. A.M.C., now 11 or 12 must face Prine again if she is to see him convicted.

Beier completes her opinion with a statement that makes it clear that the new standard will be applied by the Court and the Court of Appeals, and will presumably lead to many more convictions being overturned, though she invites the Legislature to craft an alternative standard that can survive review in the Court.

Chief Justice McFarland dissented. She argued that the Court’s decision on the new test for the admissibility of prior criminal acts to prove ‘plan’ was not clearer, just stricter and that it was not founded in law. She refers to the Court’s analysis of State v. Damewood, a 1989 case in which a pederast enticed his victim by cultivating the boy’s interest in beekeeping. In that case a previous victim, also coaxed into friendship with Damewood over the beekeeping, was able to have his account admitted. The Court held that this evidence could be admitted, and described the two incidents as ‘strikingly similar’. The outgoing Chief Justice traces these words, which she classes as an observation about the circumstances of the case and not a newly promulgated test, as they appear in subsequent cases and begin to become used as one anyway. She also notes that in 2002 they attract the word ‘signature’ to describe the method in question. She also cites a case from 1971 dealing with a piece of tax law which shows how precedents can pick up extra words down the years which totally distort their meaning. In the 1971 case the Court cut through the piled up errors and restated the original law, an action she would urge here. McFarland would allow the admission of the evidence since it shows a pattern of behavior similar enough to reasonably suppose that all the crimes were committed by the same person, which she suggests was the real holding of Damewood. Further note to readers – Chief Justice McFarland would have been the only member of the Court today who was a member at the time of Damewood. It would be interesting to know whether she took part in that decision.

Disciplinary: In re Campbell

January 17, 2009

January 16th. The Kansas Supreme Court issued a unanimous per curiam opinion in the disciplinary case of In the matter of Frederick Campbell (No. 101116). Under normal circumstances such cases are not covered by this blog, however since this case concerns a public official, it is briefly summarized here. The Court suspended the law license of Frederick Campbell, county attorney for Anderson County. Chief Justice McFarland did not take part in the case, her place being filled by Court of Appeals judge Hill.

The case arose from a drunken party near Greely. An underage girl, who was drunk, was observed by partygoers and photographed having sex with a foreign exchange student. Afterwards the Anderson County Sheriff’s office acquired the photographs and referred them to Campbell. After doctoring the photographs to obscure faces, Campbell declined to prosecute (on the grounds that the sex had been consensual) but decided to share the amended photos with parents of other minors who had attended the party, in an attempt to stir outrage at what was happening at such parties. He did this over the objection of the girl and her mother.

The Disciplinary Hearing Panel held that by doing this, Campbell violated his duty to the public to maintain his personal integrity and his duty to the legal profession and the legal system to comply with the rules. The panel (and Campbell) held that Campbell should be censured for his actions. The Disciplinary Administrator argued for a 90 day suspension, but the Court imposed a 6 month suspension and indicated that some of its members had sought a longer punishment. In addition it ruled that Campbell must undergo a Rule 219 proceeding at the end of the suspension to regain his license, in which he must prove that among other things he understands why his actions were wrong and shows that he is in a fit mental state. The Court indicated that it adopted this position in part because Campbell had argued in mitigation that he suffers from ADD and possibly Aspergers Syndrome.

Decision: Friedman v. State Board of Healing Arts

January 16, 2009

January 16th. The Kansas Supreme Court has issued its opinion in Friedman v. State Board of Healing Arts (No. 100564). In a unanimous opinion, authored by Justice Johnson, the Court dismissed the appeal of a Dr Amir Friedman against the Shawnee District Court’s decision not to issue an injunction against the State Board of Healing Arts in its attempt to revoke his medical license. Friedman had argued that since he no longer lived in Kansas and no longer held a Kansas medical license that the Board lacked jurisdiction to hear his case. Chief Justice McFarland and Justice Davis did not take part in the case, their places being filled by Court of Appeals judges Hill and Larson.

Friedman, who now lives in New Jersey, where he continues to practice medicine faces a petition from the Board to have his license revoked for three counts of unprofessional conduct, one count of falsifying a medical record, and one count of surrendering hospital medical privileges while under hospital investigation. Friedman allowed his license to elapse on June 30th 2006, and the charges were brought on July 31st of that year. Friedman filed a motion to dismiss the case against him, citing his move to New Jersey. This motion was denied by an Administrative Law Judge (ALJ) in January of 2008, and the ALJ further ordered that Friedman make preparations for the hearing of the case proper. Friedman next sought an injunction in District Court to block the ALJ’s motion and the Board’s proceedings. The District Court dismissed his motion on the grounds that it was not an appeal of a finalized administrative action. It further found that the Board of Healing Arts did have jurisdiction since it filed the case on the final day of a 30 day window that Friedman had to renew his lapsed license. The District Court held that it was able to make this decision to the extent that the injunction was considered an independent action to the underlying case.

In dismissing Friedman’s appeal the Kansas Supreme Court makes two decisions. First, it holds that the District Court was correct in refusing the injunction. The statute governing the Board of Healing Arts explicitly states that Judicial Review is unavailable until after the completion of any proceedings, except where its postponement would result in harm disproportionate to the public benefit of waiting. Since the proceedings were incomplete, and since Friedman was still practicing medicine and made no attempt to show any disproportionate harm he had suffered his injunction attempt and appeal are barred on jurisdictional grounds. The second holding was that the District Court should not have ruled on the merits of the Board of Healing Arts jurisdiction. The Supreme Court rules that the injunction Friedman sought was not an independent action since he sought to achieve the same end as the barred judicial review: reversal of the ALJ’s decision. Calling the attempt to seek judicial review something else was not enough.

Kansas Supreme Court Decision

January 9, 2009
January 9th. The Kansas Supreme Court today issued one decision. That decision was in a disciplinary case, In re Beims. The opinion is here. In the interests of balancing our workload against reader interest we do not write up Attorney Discipline cases, except in unusually newsworthy circumstances.

Analysis: The Sebelius Court

January 7, 2009

The appointment of Daniel Biles to fill the vacancy created on the Kansas Supreme Court by Chief Justice McFarland’s retirement is in some ways an anti-climax. When the nominating commission announced its three choices it was fairly clear which one Governor Sebelius would pick. As an attorney, Biles does not have a judicial track record that can be pored over to determine where he will take the law, but it is pretty safe to say that his appointment represents another significant leftward shift of the court. A major part of that is Chief Justice McFarland’s retirement*, but one must consider Biles’ record as a litigator (where for example he successfully advocated the Court’s ordering the Legislature to increase education spending). Now, an attorney has a job to do irrespective of his own beliefs, but it is implausible that he would be such a well-connected operator if he did not believe in what he argued for.

But while we must wait to see what impact Justice Biles will have on the law of Kansas it is worth noting that for the first time in its history a majority of the Justices of the Supreme Court will have been appointed by one Governor. For Kathleen Sebelius, a Democrat in an overwhelmingly Republican state, to claim this achievement is doubly notable. The Court she leaves behind as her tenure draws to a close has been stamped with her imprint.

And it is through those last two years of her tenure that we will see how the Court reflects the rest of her legacy. Conservative Republicans will doubtless note the symbolism of her appointing the architect of the Montoy case to the court as the State stumbles into a billion-dollar deficit they largely blame on that case. Democrats will see the Court as a firewall that can protect their interests in what looks to be an exceptionally challenging election cycle for them. And Sebelius herself ponders a Senate bid – one which is now uniquely vulnerable to the Court she picked handing down an unpopular decision.

Long after the Governor has moved on to other things, or retired from public life, the Kansas Supreme Court will extend her influence into the laws and precedents of the state. With Chief Justice McFarland’s retirement, the leadership of the State Judiciary automatically passes to Justice Robert Davis, but at least for the time being this won’t be the Davis court, but rather the Sebelius court.

*The Chief Justice has penned a few dissents in criminal cases in recent years, often the lone dissent. Most notable of these was Kansas v. Marsh which was ultimately overturned by the US Supreme Court. It is also fairly likely that that court will again endorse McFarland’s position and not her colleagues when it considers the case of Kansas v. Ventris later this month. [Note: both referenced cases were named as State v. … during their earlier history].

As predicted here, Sebelius names Biles to Kansas Supreme Court

January 7, 2009

Governor Kathleen Sebelius today named Overland Park Attorney and Democrat-donor Dan Biles to the vacancy on the Kansas Supreme Court caused by Chief Justice Kay McFarland’s mandatory retirement. We predicted that she would choose Biles last month. Of the three nominees, Biles was the most controversial, given his involvement in a number of high profile cases.

We will have more coverage later today.


Justice Biles is expected to formally take office next month. He will be up for a retention election in November 2010.

Click here for a link to our coverage of Dan Biles at the time he applied for the position.

Kansas Liberty covers the Biles appointment here.

Kansas Defenders covers it here.

US Supreme Court Preview – Kansas v. Ventris (Analysis)

January 1, 2009

This post continues from the background to the case which was published previously. Since the Kansas Supreme Court’s decision in State v. Ventris was based on rights guaranteed in the Federal Constitution the U.S. Supreme Court has jurisdiction to review it. The State of Kansas filed a certiorari petition which the Supreme Court granted, and the case will be argued on January 21st 2009.

Before proceeding any further, it should be noted that in the background of this case is a much bigger issue than the immediate concerns of Mr Ventris, or even the main issue of the introduction of this type of evidence for impeachment purposes. The Warren court decided in Massiah v. United States (1964) that once criminal proceedings had commenced (the right to counsel is said to be attached at this point), statements made by the defendant without his lawyer present were inadmissible. Massiah is a far reaching case, but one which the Court has seemed to back away from in more recent years. When the issue was last addressed in Michigan v. Harvey (1990) the Court explicitly noted that it was not addressing the use of such statements for impeachment purposes. Now, that that latter issue is before it there is clearly fear on the part of the Respondents that the U.S. Supreme Court will trim back Massiah if it finds for Kansas.

In its appeal, Kansas argues that the Kansas Supreme Court erred in its application of an exclusionary rule to evidence used for impeachment purposes. The state argues that as it has crafted its exclusionary rules the U.S. Supreme Court has clearly differentiated between evidence that is admissible in the case in chief and evidence that is only available for purposes of impeaching a defendant’s testimony. Citing caselaw concerning the 4th, 5th and 6th amendment exclusionary rules the state argues that to disallow the use of this kind of evidence for this purpose would create a ‘license to commit perjury’ and that any exclusionary rule crafted should balance between the protection of the underlying constitutional rights and the Trial Court’s role as a truth-seeker. The proper balance it says is to block such evidence only in the case in chief. It notes that well known exclusionary rules such as those stemming from illegal seizures and Miranda rights do not prevent the use of such evidence for impeachment purposes.

The State further argues that the purpose of exclusionary rules is to deter future misconduct by police. Losing the evidence for those purposes is bad enough to deter future miss-steps. It is worth noting at this point that this is an appeal of a conviction for aggravated robbery. Had Ventris’ statements to Doser been admissible in the main case, perhaps he would not have been acquitted of felony murder. The State also makes the argument that other deterrents exist given the increasing professionalization of the police and the existence of Bivens actions and 1983 suits.

The State also takes issue with the Kansas Supreme Court’s use of the term ‘prophylactic rule’. It argues that ,while this is a useful analytical term to describe how the U.S. Supreme Court has crafted its rules, citing it in the way it did the Kansas Supreme Court elevated it to the status of a ‘legal talisman’ that it does not warrant. Perhaps this argument is designed to show a lack of textual fidelity to get the attention of the conservative Justices.

Ventris’ argument takes a different approach. His brief draws a distinction between different types of exclusionary rules – those that protect a constitutional right itself and those that are ancillary to the right. It is these latter ones which have exceptions for impeachment purposes. For example, in the case of the Fourth Amendment and an illegal search, it is the police search which was the violation, not the admission of the evidence at trial. Thus the rule excludes the evidence from the case in chief as a deterrent but does not eliminate it altogether. In contrast, the right to avoid self incrimination concerns the trial itself and is therefore totally exclusionary. At its heart, Ventris’ argument is that the 6th Amendment right to counsel is fundamental to the adversarial process which in turn is fundamental to justice, and that since it is inextricably connected to the trial the only remedy for a violation is total exclusion. His brief cites Powell v. Alabama (1932) for an eloquent argument of why a defendant needs a lawyer in the pre-trial process. This case, he reminds the Court, was why the right to counsel was extended to apply before trial, since today much interrogation happens before any trial which was not the case at the time of the Founding.

As a backup position the brief argues that even if the U.S. Supreme Court does find an exception to the exclusionary rule it should not be as broad as that sought by Kansas but should be limited to cases where a defendant is clearly lying.

Kansas is supported by three amicus briefs. The first two of these (from the United States, and from 24 of the States) break no new ground but underpin and expand on Kansas’ core arguments. The third, submitted by the Criminal Justice Legal Foundation is noteworthy.  While the first section of this brief ties back to the Ventris case, much of it is devoted to an analysis of Massiah, its origins and an argument that Massiah has been superseded by the Court’s holding in Kuhlmann v. Wilson (1986) which allowed confessions collected by a passive listener. The brief focuses on the voluntary nature of Ventris’ conversation with Doser and makes the argument that it should not be classed as an interrogation at all, and therefore Ventris should have no 6th Amendment rights at issue. The brief suggests that the decision of the Kansas Supreme Court was motivated by hostility to informants.

An interesting piece of trivia is that the same passage from Powell, which the Respondents’ brief cited is contained in the CJLF brief too, where it is used to argue that the purpose of the 6th Amendment is to protect a right which exists in the critical stages of a prosecution and that extending those to include the circumstances of this case is too much.

We will have more coverage of this case, when it is argued before the U.S. Supreme Court.